How to dupe a claimant where the claim is on the ‘blurred lines’ of the small claims / fast track


Claim worth £9k+, not the most complex but an expert would probably help on causation (e.g. mechanical services engineer or fire expert).

What happens?

  • Particulars challenged with robust defence.
  • Defendant makes an offer to settle in open correspondence on a global basis (e.g. £7.5k – £8k)
  • Notice of provisional allocation to small claims track sent by Court.
  • The defendant completes the D/Q stating the small claims track is appropriate and no expert is needed

How to dupe the claimant

  • Make a Part 36 offer by completing the MOJ Part 36 offer form and serve this on the claimant’s solicitor 9say £6k-£7k)
  • After the claimant’s solicitor accepts the offer send them the settlement cheque for damages
  • Then, wait a week and tell them you are paying £555 only for the issue fee and fixed small claim costs

How is this possible?

Due to a stupid quirk in the rules:

  • CPR r 44.9 states a costs order will be deemed to have been made on the standard basis if a Part 36 offer is accepted after commencement of proceedings
  • CPR r 27.2(1)(g) provides that Part 36 does not apply to small claims and CPR r 27.14 is restrictive in providing that small claims are subject to the fixed costs regime of CPR r 27.14 and CPR Part 45.
  • CPR r 46.13(3) states that when the court is assessing costs on the standard basis which concluded without being allocated to track it may restrict costs to the costs that the claim would have been allocated to if allocation had taken place.

As the Court sent notice of provisional allocation to the small claims track it means the Court is already against the claimant.

While the claimant will have an authority for costs, CPR r 46.13(3) was an amendment to the pre-1st April rule and now includes cases where there has been no allocation. Prior to this in such cases the O’Berne v Hudson process applied and we had to go through bills line-by-line ascertaining whether costs were reasonable having reference to the fact it would have been a small claim. As provisional allocation indicates that at the allocation hearing this would have been allocated to the small claim, but only in the fast track with a particularly suave tongued barrister. On assessment the Court will go through the same thought pattern.

It’s unlikely a claimant will run the fast track argument due to the risk involved, and coupled with the limited time they would have spent on the claim expecting it to be a small claim with fixed costs, they won’t have front loaded in the same manner as a fast track claim as the Part 36 offer was not expected.

I am interested in whether others have seen anything like this?  Would be helpful to have a first instance decision.

Over and out.

Legal Orange.

Rate My Lawyer dot com

I read an interesting article about providing feedback on lawyers (

In certain spheres it makes a lot of sense. Those providing non-contentious services could gain recognition of their skills online. Such a rating scheme, in particular, lawyers working on estates, tax and other general private client matters could allow clients to share their positive feedback.  I can see a downside with residential conveyancing which has a high complaint level, but a lot of other non-contentious work could be fairly rated by clients.

The problem would be fairly rating litigation lawyers. In the vast majority of cases (please humour me and ignore multiple parties), one person wins and the other loses.  Sometimes they both lose. This means that one side is often displeased with the outcome. Compliance departments encounter a large number of complaints about lawyers who handled claims where the trial judge went against them. This does not mean the advice was poor; but simply the outcome was negative. In those circumstances, a client may be minded to publish negative feedback.  As the firm cannot disclose a large amount of information about claims, any right of reply would see the firm fighting with one hand tied behind their back.

I would be interested in any ‘happy medium’ ideas. Anybody???

Over and out.

Legal Orange


Coventry & Lawrence decision

Supreme Court non-shocker!

Not a good use of their valuable time to decide on an outdated and repealed regime in any event.

Lord Neuberger, Lord Dyson, Lord Sumption and Lord Carnwath were pretty clear – and their heavyweight opinions mean a lot!

The dissenting voices may give the defendants some optimism of an appeal to Europe, but if we look at it logically, they will fail at that hurdle. Insurance is available to claimants and defendants, so where everybody can in theory insure against the risk, they are unlikely persuade the more sympathetic judges outside of the UK.

A correct decision.

Over and out.

Lega Orange

A judge ignoring an application and making a quasi-decision building (or hiding) it partly into directions

Linking back to a previous article on my client’s application for an Unless Order relating to Part 18… (

Late last week, before the court made a decision, the defendants’ solicitor served a HANDWRITTEN response.

Yes, they asked a low-level employee of one of the defendants to hand write some answers and they had the cheek to serve it. All the more embarrassing, a lot of the answers said “Don’t know” or had “n/a” written on it.

It may be important to note, this was a top 30 law firm who served this.

2 days after receiving this, the Court handed down directions. Hidden within the directions was a provision for the defendants to reply to the Part 18 request by a set date. That date is yet to pass. We have asked them to try again…

Nothing mention about our client’s application. Nothing ordered in relation to a sanction (i.e. it was not an unless order). Absolutely silent on costs. The paragraph only allowed the defendant to apply to set aside or vary this decision on Part 18.

So if they don’t serve a better reply, we have to make a FURTHER application. It took 11 weeks from start to finish. Any further application will probably involve another month. This would mean from start to finish, our initial request, extension, initial application and 2nd application would be almost a third of a year from start to finish.

If this is what the defendants serve for Part 18, we are likely to have at least another one or 2 applications when they inevitably mess up disclosure!

Over and out.

Legal Orange.

The long winding road for an Unless Order

Brief overview

  • Claim is issued on a non-PI civil lit claim.
  • Defence is filed (which is filled with ridiculous points and an eye watering 100% contributory negligence claim).
  • We suspect that D’s solicitor is on delegated authority and not in contact with their Principal’s insured. D’s solicitor has signed the defence.
  • Reply to Defence is file (and kept short, due to my style being to not replead the entire claim, but note D’s errors).
  • Part 18 Questions are put to D. We demand the Replies be signed by a statement of truth of their named client.
  • D’s solicitor asks for a 2 week extension on our 21-day request. This is granted.
  • After 5 weeks, and no Part 18 Replies, we apply for an Unless Order
  • In the meantime, D/Q’s were filed and the claim was stayed.
  • Due to the delights of our system, we had to file updated D/Q’s following the stay (!)
  • After 4 (yes four) weeks, despite numerous telephone calls to the Court and being assured the application was with the duty Judge at the County Court Money Claims Centre, the claim is transferred to a South East Court.
  • We telephoned the Court in the South East and asked for our application to be prioritised and was told as a new claim it is likely to be at the bottom of the pile. I do not have an issue with this as they have inherited this problem.

So here we are, over 11 weeks from making a Part 18 Request, and over 4 weeks since making our application for a 7 DAY UNLESS ORDER.

D’s solicitor remains silent in response to our letters and voicemails. We are not optimistic of them signing our consent order. We are even less optimistic on getting the Unless Order in July 2015.

A trainee in our office is running a book (maximum bet £5 -odds of 5/1 before 7 July; 3/1 between 8-15 July; evens between 16-23 July; all money to charity if the Order arrives 24 July onwards).

Over and out.

Legal Orange

The merry go round of recovering money back from the Court


Our client was brought in as a Part 20 Defendant.

We had a good argument for summary judgment / strike out.

The application for SJ/strike out was made to the County Court Money Claims Centre. The fee was £155.

What happened next?

We received a Court Order saying the claim had been transferred to Southampton. We had no notice of transfer, and were advised that our client to quickly complete the D/Q’s that were due. Note here, the Court sent no notice, nor could tell us the return date!

Then what?

Southampton transferred it to Winchester.

What’s the problem?

The County Court Money Claims Centre stated that the fee for our client’s application had to be paid to Winchester. We agreed (as what else could we do?) and raised another duplicate cheque and asked for our original cheque to be returned.


The claim settled (we had a hearing for our client’s application, both sides got nervous 3 days beforehand and we settled VERY cheaply at 5 to 10% of the potential exposure to our client).


The Court transferred it again upon allocation from Winchester to Worcester.

At this point we asked the Money Claims Centre for our cheque.

They demanded to know whether we had proof that both cheques had been banked, and requested copies of the front and backs of both cheques to show they were cashed and had a Court stamp.

My accounts department has confirmed both cheques have been cashed. By HMCTS. ON THE SAME DAY.

I am waiting to hear back regarding the fronts/back, etc.

This will probably end in a formal complaint to HMCTS.

Oh what’s that? None of this is billable work!!!

Over and out.

Legal Orange.



Agree with this!

Originally posted on Kerry Underwood:



Don’t dumb down

  • Senior lawyer intervention at start;
  • A stitch in time saves nine;
  • Is it in the right portal – employees, Crown servants and all that;


Part 36


  • Immediate offer on liability where appropriate;
  • Specials to date;
  • Settle early – settle low;
  • Consider “one good offer or go to trial” policy;
  • Anything and everything.
  • Claimant lawyers’ 25% more valuable the earlier the case settles
  • Portals

    • Never let it out!
    • Is contributory negligence ever worth it?
    • Court fees: unintentional tax on defendants?

    Fixed Recoverable Costs

    • Extend by agreement;
    • Has the Claimant got ATE;
    • The Claimant’s solicitors 25% damages charge – making it work for defendants;
    • Agreeing to waive the indemnity principle;
    • Agreeing DBAs plus costs;
    • Don’t make the claimant’s solicitor do unnecessary work;
    • Less work, lower costs but more profit makes both parties happy;
    • No more fattening up a file up like a pig for market.

    View original 306 more words